Shepard Fairey, the street artist behind the "Hope" poster, became the target of an AP lawsuit last week. The news agency says it owns the rights to the hopeful poster because its photographer took the original photo of Barack Obama, and it wants credit and compensation from Fairey.

With hope on his side, Fairey filed his own suit yesterday, asking the court to rule that he did not violate copyright law by using the AP photo.

Fairey argues that he transformed the literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."

Everyone claiming it's not copyright infringement because he didn't make money - you don't have to profit from something for it to be copyright infringement.
17 USC 106 reads:
the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
. . .
(2) to prepare derivative works based upon the copyrighted work
If it's decided that this is a derivative work, not a transformative work, then I'm afraid that this artist is in violation of copyright.

IMO this falls under fair use and it appears the AP may not even own the copyright to the photo, Mannie Garcia the photographer claims he does.
"Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.
http://www.nytimes.com/2009/02/10/arts/design/10fair.html?ref=arts

Sy, I didn't know they weren't actually suing, thanks for the info. If they did bring suit, though, I would think fair use precedent would fall on Fairey's side. He significantly changed the image and I don't think the AP had any real damages.

the post is a little misleading, this is what I read: AP spokesman Paul Colford said the AP was "disappointed by the surprise filing." He said in a statement that the AP had agreed last week <b> not to take legal action while it was in settlement talks, </b> but that Fairey's attorney broke off contact Friday.<b> The AP has not taken legal action against Fairey. </b> But his lawsuit noted that the AP had threatened twice to sue Fairey, possibly as early as Tuesday, and that it considered all works that incorporate the imagery of the "Obama Hope" poster to be infringements of its copyrights.

the post is a little misleading, this is what I read:
AP spokesman Paul Colford said the AP was "disappointed by the surprise filing." He said in a statement that the AP had agreed last week not to take legal action while it was in settlement talks, but that Fairey's attorney broke off contact Friday.
The AP has not taken legal action against Fairey. But his lawsuit noted that the AP had threatened twice to sue Fairey, possibly as early as Tuesday, and that it considered all works that incorporate the imagery of the "Obama Hope" poster to be infringements of its copyrights.

I firmly believe that Fairey's image falls within fair use. The image has been altered significantly (and not just "colorized" as many people claim) and most importantly, the purpose and message of the image is dramatically different. Also, there is some debate about whether or not the AP even OWNS this image; the photographer, Mannie Garcia, claims he had not signed a contract with the AP during the period that picture was taken. If that is the case, Mannie would be the owner of the copyright.

I firmly believe that Fairey's image falls within fair use. The image has been altered significantly (and not just "colorized" as many people claim) and most importantly, the purpose and message of the image is dramatically different.
Also, there is some debate about whether or not the AP even OWNS this image; the photographer, Mannie Garcia, claims he had not signed a contract with the AP during the period that picture was taken. If that is the case, Mannie would be the owner of the copyright.

This lawsuit is frivolous. There is no copyright infringement. For one thing, the average person will not confuse Fairey's work with the photo. And another, has AP heard of "fair use" under copyright laws? I guess when it only serves them.Fairey's in the right.

This lawsuit is frivolous. There is no copyright infringement. For one thing, the average person will not confuse Fairey's work with the photo. And another, has AP heard of "fair use" under copyright laws? I guess when it only serves them.
Fairey's in the right.

It seems to me the artist could have called the AP or another photographer and gotten permission to use a photo. At the time, no one knew he'd have such a hit. If he had done that, he probably would have been given permission for free.